EXHIBIT 10.36
(Translated from German to English)
COPY
AGREEMENT
dated February 8, 1996
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effective starting April 1, 1996 (effective date)
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between
UNITED INTERNATIONAL PICTURES GmbH, P.O. Box 71 08 48, 60498 Frankfurt/Main
(hereinafter referred to as "LICENSOR")
and
PRODAC GmbH, Max-Planck-Strasse 38, 50858 Cologne
(hereinafter referred to as "LICENSEE")
1. the LICENSOR hereby grants the LICENSEE a time-limited non-exclusive
license within the scope of the prevailing copyright provisions and other
applicable provisions to distribute FILMS for the purpose of hotel guest
display in the HOTELS within the contract territory for the relevant
presentation period.
2. (a) As consideration for the LICENSE granted hereinafter, the LICENSEE
shall pay the LICENSOR a monthly license fee of DM [***] (in words:
[***]) plus VAT; beginning on the above-captioned date (effective
date of this agreement), the LICENSEE shall present films of the
LICENSOR for at least 6 months of the contract term of 12 months.
The LICENSEE may select a maximum of 30 titles from the respective
program of the LICENSOR--dependent, however, on the latter's
availability. This number shall increase by the number of titles
which are selected by the LICENSEE which the LICENSOR is not able to
deliver.
Within one month, calculated from the effective date of this
agreement, the LICENSOR shall also provide the LICENSEE with 20 films
for the LICENSEE's "Videoquest" system for a period of 12 months. In
consideration thereof, the LICENSEE shall pay the LICENSOR a license
fee in the amount of [***] % of the net revenues--which are to be
documented by the LICENSEE--for the months in which it presents no
films by way of hotel guest presentation (as defined in this
contract). The LICENSEE shall settle with regard to the relevant net
revenues by the 15th of the month for the preceding calendar month.
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[***] Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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The license fee shall be paid by the LICENSEE on a monthly basis
immediately following receipt of the relevant invoices from the
LICENSOR. Payment for the aforementioned films made available for use
in the LICENSEE's Videoquest system shall be made together with
settlement.
(b) The LICENSEE shall pay the LICENSOR a license fee in accordance with
appendix C on the basis of the total number of rooms communicated to
the LICENSOR by the LICENSEE pursuant to sec. 3 (b) of the Standard
Contract Terms; increases shall apply starting from the point in time
at which additional rooms are added.
(c) Immediately after the time of the addition of rooms, or upon the
LICENSOR's consent to the possible expansion to include additional
rooms in a new HOTEL pursuant to sec. 5 (a) of this agreement, the
LICENSEE shall pay the LICENSOR the portion of the additional license
fee allocable to the current month. For the following months, the
LICENSEE shall pay the additional license fee in advance, together
with the minimum license fee pursuant to sec. 2 (a), above.
(d) All payments shall be made by wire transfer to the bank account
communicated by the LICENSOR. The license fees allocable to the
LICENSOR shall be understood to exclude value-added tax and other
taxes. Customs duties or other charges or fees which are imposed on
the delivery and presentation of films pursuant to this contract. The
value-added tax payable by the LICENSEE pursuant hereto shall be
listed in addition in the invoice by the LICENSOR for the relevant
license fee payment. Invoices of the LICENSOR shall be payable
immediately without deduction upon receipt by the LICENSEE.
3. (a) Subject to sec. 3 (b), below, the LICENSOR hereby promises to deliver
30 titles per year. It is hereby clarified in this connection that,
to the extent that use rights to a title are granted in more than one
language, this shall be deemed to constitute one title for purposes
of this provision.
(b) Subject to availability, the LICENSOR shall make available to the
LICENSEE a number of video cassettes of films coordinated by the
parties in advance; however, the LICENSOR hereby reserves the right
to make the final decision based on its discretion.
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(c) At the end of each contract year, the LICENSEE shall have the
elective right to return--all or part of--the video cassettes
delivered during the expired contract year or destroy them in
accordance with sec. 5 (e) of the Standard Contract Terms. Moreover,
the LICENSEE may retain the video cassettes for one or more titles,
but subject to the proviso that said titles shall be counted toward
the titles to be delivered during the following year (maximum of 30
in the absence of agreement to the contrary) and the number of video
cassettes which are to be provided therefor.
4. This agreement shall have a term of one year, calculated from the effective
date thereof. It shall be extended by consecutive one-year terms, unless
one of the parties terminates it in writing upon compliance with a notice
period of 90 days effective at the end of a contract year.
5. A hotel guest presentation may only take place in one of the HOTELS
communicated to the LICENSOR pursuant to sec. 3 (b) of the attached
Standard Contract Terms upon written clearance of the HOTEL by the
LICENSOR. The LICENSOR may only refuse to grant said clearance for good
cause. To the extent possible, the LICENSOR shall submit its declaration in
this regard within two weeks of receipt of the relevant information from
the LICENSEE pursuant to sec. 3 (b) of the Standard Contract Terms. Upon
clearance, appendix A shall be deemed amended mutatis mutandis.
6. Notwithstanding sec. 5 (b) of the Standard Contract Terms, the LICENSEE
shall be entitled to pulse transmission with regard to the video cassette,
provided that the final version of the films on the video cassettes is not
impaired thereby.
7. The use rights granted pursuant hereto shall apply to the countries of
Germany, Austria, Belgium, Luxembourg, the Netherlands, Spain, France,
Poland, the Czech Republic, the United Kingdom, Switzerland, Hungary and
Russia (hereinafter referred to as the "contract territory"). Use rights
for additional countries in connection with this agreement shall require
the prior written consent of the LICENSOR. If the LICENSEE applies for the
grant of use rights for additional countries, the LICENSOR shall, if at all
possible, communicate its decision to the LICENSEE within two weeks of
receipt of the application.
8. This agreement shall be governed by the laws of the Federal Republic of
Germany.
9. The attached General Contract Terms and appendices shall constitute
substantial components if this agreement. To the extent that the provisions
of this agreement are in conflict with those of the Standard Contract
Terms, the provisions of the agreement text shall take precedence.
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10. The definition of terms in the Standard Contract Terms shall also apply to
this agreement. Conversely, definitions of terms contained herein shall
also apply to the Standard Contract Terms.
In witness thereof, the parties executed this agreement on the date stated at
the outset.
UNITED INTERNATIONAL PICTURES GmbH
by:
/s/ Paul Steinschulte
Paul Steinschulte
PRODAC GmbH
by:
/s/ Heinz Wirt
Heinz Wirt
HOTEL VIDEO
STANDARD CONTRACT TERMS
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The following Standard Contract Terms shall supplement the special terms and
conditions in the attached agreement (hereinafter referred to as the
"agreement") between the LICENSOR and the LICENSEE named therein.
DEFINITIONS OF TERMS
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The following definitions shall apply to the agreement and these Standard
Contract Terms:
"Availability date": The time at which the LICENSOR is able to make the
video cassettes of the FILM in the stipulated
format available to the LICENSEE for contractual
use within the contract territory. The
availability dates of the individual FILMS shall
be set by the LICENSOR's end supplier, taking into
account his interests and rights, as well as the
relevant technical requirements for manufacture in
the appropriate format, and shall not be subject
to the influence of the LICENSOR.
"Beginning of presentation": For each hotel, the point in time at which the
hotel guest presentations pursuant to appendix A
are scheduled to begin in the version modified
according to sec. 3 (b); in the absence of an
indication of a time, the date on which the
agreement takes affect.
"Presentation period": With regard to each individual FILM, the period
during which presentation is permitted in
accordance with the agreement--beginning on the
date of actual delivery of the video cassettes to
the LICENSEE (no earlier, however, than the date
on which the agreement takes effect)--and ending
either (i) at the end time, (ii) the point in time
at which the rights of the LICENSOR to grant use
rights lapse or (iii) the point in time at which
the LICENSOR's suppliers--for whatever reason--
adopt a provision to the effect that distribution
of the FILM in connection with the agreement shall
end; the earliest point in time shall govern.
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"Hotels": The hotel(s) within the contract territory as
described (name and location) in appendix A in the
version amended in accordance with Sec. 3 (b),
provided that the hotels are hotel facilities in
the true sense of the word (i) whose rooms are let
to guests exclusively for the primary purpose of
short-term temporary lodging and (ii) in which the
presentation of FILMS represents a merely
ancillary service for guests in relation to
lodging.
"Hotel guest presentation": Presentations exclusively in the respective hotel
rooms or suites, to which only lodging guests of
the hotel have access; presentation shall take
place using video cassettes over a hotel
distribution facilities.
The term "hotel guest presentation" shall not
include presentations in rooms or areas to which
the general public (i.e., persons, including
conference participants who are not lodging guests
of the hotel) have access; the term shall also be
understood to exclude presentation by means of
devices or media other than those expressly stated
in the preceding sentence.
"Films": The feature films listed in appendix B
(including--to the extent that the terms and
conditions of the agreement and these Standard
Contract Terms can be applied mutatis mutandis--
the FILMS provided in sec. 2 (a) of the agreement
for the LICENSEE's Videoquest system.)
"Rooms": The individual hotel rooms or suites of a hotel
which (i) are available for use by hotel guests
(regardless of actual occupancy) and (ii) equipped
with devices for hotel guest presentations. The
number of rooms in each hotel is stated in
appendix A.
"End time": The point in time at which the contract ends in
accordance with sec. 4 of the agreement or
according to sec. 13 below, depending on which is
earlier.
"Video cassettes": Video cassettes (in the stipulated format and
standard) of the FILMS with (at the discretion of
the LICENSOR) subtitles and/or
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synchronized in a contract territory language and
otherwise in a final version which are delivered
to the LICENSEE by the LICENSOR either directly or
through a contract laboratory pursuant to sec. 5
(a) for hotel guest presentations in connection
with the agreement.The quality of the video
cassettes shall conform to the purposes of the
agreement.
LICENSE
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1. (a) The LICENSOR shall grant the LICENSEE a time-limited non-exclusive
license within the scope of prevailing copyright provisions and other
applicable positions to distribute FILMS for hotel guest
presentations in hotels within the contract territory for the
respective presentation period.
(b) The LICENSOR shall arrange for the delivery of video cassettes to the
LICENSEE or its agent, subject to the availability dates of the
relevant FILMS and subject to the timely payment of license fees and
other sums owed pursuant to this agreement. The LICENSEE shall not be
permitted to permit a presentation of the FILMS prior to the relevant
availability date or deliver video cassettes of the relevant FILMS to
the hotels.
(c) The LICENSEE shall be obligated to ensure that the FILMS are
presented exclusively in the manner intended pursuant hereto, at the
location defined herein and exclusively during the presentation
periods. Moreover, the LICENSEE shall be obligated not to permit any
presentation of the LICENSOR's FILMS concerning which the LICENSEE
has not been granted express presentation rights hereby.
(d) The LICENSOR hereby reserves all rights with respect to all FILMS,
except where license rights have been expressly granted to the
LICENSEE herein; the LICENSOR shall be free to exercise the rights
which he reserves pursuant hereto without regard to whether, or the
extent to which, such exercise of right establishes a competitive
relationship vis a vis the LICENSEE or the use licensed hereby.
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(e) The agreement shall end at the end time. All rights to the FILMS
shall revert to the LICENSOR upon expiration of the presentation
period or at the end time--whichever comes first.
BOOKS AND AUDIT RIGHT
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2. (a) The LICENSEE shall be obligated to maintain complete and accurate
books and records concerning the payments and revenues which it
receives in connection with the agreement. Such books and records
shall be retained for a period of two years starting from the end of
the contract, but for not longer than a period of five years from the
end of the accounting year in which the books and records were
created.
The foregoing shall always be subject to the proviso that the
LICENSEE shall only be entitled to destroy such books and records if
he has notified the LICENSOR in writing of such intention upon
compliance with a notice period of at least 30 days.
(b) Upon prior agreement with the LICENSEE, the LICENSOR shall have the
right--which shall be exercisable by its (outside or internal)
auditors, agents, representatives and/or employees--to audit, make
copies or prepare excerpts of the books and records identified in
letter (a), above, relating to the agreement and may do so at any
time during normal business hours within the term of the agreement
(including any extension thereto) and for a period of two years
starting from the end of the contract. The LICENSEE's auditors shall
be obligated to make their own audit documents relating to the
agreement available to the LICENSOR's auditors. The LICENSEE shall
ensure for the LICENSOR and its auditors that complete audits (i.e.,
to the extent defined for the LICENSEE under this sec. 2 with regard
to books, accounts and records of third parties, completely
regardless of whether they are affiliated with or independent of the
LICENSEE) can be conducted with regard to the services provided for
the LICENSEE by third parties for purposes of this agreement.
(c) The LICENSOR shall bear the costs incurred in connection with the
inspection, creation of copies and/or audit pursuant to letter (b).
If, on the other hand, it is determined that the LICENSEE has set the
payments to be made to the LICENSOR pursuant hereto excessively low
or, conversely, set the amounts payable by the LICENSOR excessively
high, the LICENSOR may, without prejudice to other rights to which he
is entitled, demand that the LICENSEE pay the sums set forth below in
addition to making payment of the full difference amount (provided
that the sum of all deviations affecting the payable amount which are
detected exceeds 5% of
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the amounts allocable to the LICENSOR at the time of the audit or at least the
equivalent of US$ 1,000 in local currency):
(i) all costs incurred by the LICENSOR or in its name for the
purpose of ascertaining the deviation (particularly all
directly allocable travel and maintenance costs, as well as the
assignable salary expense on the part of the LICENSOR) and
(ii) interest on the entire difference amount on a cumulative basis
in the amount of 4% above FIBOR starting from the first due
date for the payment relating to the relevant owed sum.
(d) Examinations pursuant to the foregoing shall be conducted (following
announcement) at reasonable times during ordinary business hours
within the term of the agreement (including any extension thereto) or
within two years of the end of the agreement.
REPORTS
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3. (a) On the closing date of June 30 of each year or other point in time
set by mutual agreement of the parties, the LICENSEE shall give the
LICENSOR an inventory list in a form acceptable to the latter which
lists the title of the FILMS, as well as the format and place of use
of all video cassettes in the possession of the LICENSEE. The
foregoing shall be sent to the LICENSEE by no later than July 30. The
LICENSOR reserves the right to check the inventory lists on a random
basis at any time during normal business hours during the term of
this agreement.
(b) Within 30 days from the end of the month, the LICENSEE shall give the
LICENSOR a monthly list of:
(i) changes in the number of rooms of the hotels;
(ii) new hotels in which the installation of technical facilities
for hotel guest presentations is impending during the upcoming
months, as well as the planned start of hotel guest
presentations and the planned number of rooms for each new
hotel--without prejudice to the requirement of prior consent of
the LICENSOR pursuant to sec. 5 (a) of the agreement;
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(iii) existing hotels in which an end to hotel guest presentations is
pending during the following months;
(iv) the titles played pursuant to this agreement during the
relevant month.
As a request of the LICENSOR, the LICENSEE shall be obligated to
submit to the LICENSOR a written confirmation of the hotels
concerning the number of rooms in the relevant hotel and/or the
actual beginning or actual ending of hotel guest presentations in
the hotel.
TAXES
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4. The LICENSEE shall assume all present and future taxes (particularly
including transfer, source and value-added tax), import duties, other taxes
and inspection office fees (including interest and penalty surcharges
allocable thereto) in connection with the licensing, leasing, delivery,
import, presentation, possession or use of the FILMS or video cassettes or
the payments made and received in accordance with the agreement.
DELIVERY AND RETURN
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5. (a) The LICENSOR shall provide the LICENSEE or its agent with video
cassettes in the quantity stipulated in the agreement. Delivery shall
be made either by the LICENSOR directly or--at its election and with
its prior written consent--by a laboratory cleared by the LICENSOR
and the Motion Picture Expert Association of America (MPEAA). In the
latter case, the LICENSEE shall submit its purchase orders for video
cassettes directly to the LICENSOR, who shall forward them to the
laboratory in question. The LICENSEE shall not be permitted to order
directly from the laboratory.
(b) The LICENSEE may only use video cassettes in accordance with the
agreement. The LICENSEE shall be prohibited from duplicating video
cassettes--in their entirety or in part. All cutting, editing and
title changes or other modifications of the video cassettes shall
require the written consent of the LICENSOR and shall be carried out
solely at the expense of the LICENSEE.
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(c) The LICENSOR shall bear the costs of manufacturing the master copy of
the video cassettes and (if delivery is made by a cleared laboratory)
the shipping and handling costs in connection with the delivery of
the video cassettes to the laboratory. All other costs and outlays,
including the costs of manufacture and duplication of video cassettes
and the costs of transportation and insurance in connection with the
delivery of video cassettes in the final format to the LICENSEE
within the contract territory, shall be charged to the LICENSEE. The
LICENSEE shall be free to dictate to the LICENSOR the manner of
transportation desired by the LICENSEE. If the LICENSEE fails to do
so, the LICENSOR shall select the manner transport at its reasonable
discretion. The LICENSEE shall be obligated to promptly settle the
invoices concerning the costs and outlays which he must bear pursuant
to the foregoing, particularly transport and related costs. If the
LICENSOR is guilty of delay in delivery and increased transport costs
arise in--wholly or partially--making up for the delay, the
additional costs in question shall be charged to the LICENSOR. if the
LICENSOR delivers the video cassettes directly to the LICENSEE, the
latter shall be charged with all costs and outlays which he must bear
pursuant to the foregoing. the LICENSEE shall be obligated to settle
the relevant invoices promptly.
(d) Upon expiration of the presentation period, but not later than the
end time, the LICENSEE shall return the relevant video cassettes to
the LICENSOR or another person or office designated by the LICENSOR.
(e) If, during the term of the agreement, the LICENSEE is of the opinion
that video cassettes should be erased or destroyed, he shall be
obligated to obtain the prior written consent of the LICENSOR, which
shall also extend to the proposed procedure and location of erasure
or destruction. In the case of erasure of the video cassettes, the
LICENSEE shall ensure complete erasure of the contents of the
cassettes. For each erased or destroyed cassette, he shall be
obligated to submit a destruction record to the LICENSOR in the form
jointly defined with the LICENSOR. Notwithstanding sec. 6 (a), the
LICENSEE shall be entitled to retain all blank video cassettes
following erasure.
(f) A violation by the LICENSEE of the provisions of this sec. 5--
including, in particular, the use of video cassettes of FILMS which
are not video cassettes under the contract--this shall establish the
elements of a violation of substantial obligations of the agreement.
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OWNERSHIP RIGHTS
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6. (a) All video cassettes delivered pursuant to the agreement shall remain
the property of the LICENSOR or its suppliers who shall hold all of
the following rights arising from ownership.
(b) The LICENSEE shall not be permitted to remove copyright notices or
trademarks from the video cassettes or promotional material for the
FILMS or permit removal by third parties. The LICENSEE shall be
prohibited from presenting video cassettes or permitting a
presentation without a copyright notice in the form of appendix D or
other form permitted in advance by the LICENSOR in advance.
(c) The LICENSEE shall acquire no personal rights in the trademark of the
LICENSOR and the LICENSOR's suppliers. The LICENSEE shall be
permitted to use said trademarks solely in connection with the FILMS.
(d) The LICENSEE shall be obligated to use the video cassettes in
accordance with the agreement and shall be obligated not use other
video cassettes of the FILM products of the LICENSOR or its suppliers
for purposes (including program preview) which are not expressly
named in the agreement.
(e) The LICENSEE shall take all available measures to ensure that the
video cassettes delivered to the hotels are not used by third parties
for non-contractual purposes. The LICENSEE shall be further obligated
to obtain a declaration of obligation from its customers to the
effect that they will use their best efforts to endeavor to protect
the video cassettes from unauthorized use and unauthorized
exploitation and/or commercial use. The LICENSEE shall confirm that
it shall reject a delivery from customers which violate this
obligation. Moreover, the LICENSEE shall use its best efforts to
ensure that no video cassette recorder or other AV equipment can be
connected to television sets in the rooms of the hotels in which the
presentation of FILMS is received by in-house TV sets and shall use
its best efforts to ensure that all video cassettes are stored and
transported in such a manner that they are protected against theft,
loss and/or damage in the best manner possible.
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(f) The LICENSEE shall notify the LICENSOR promptly if it becomes aware
of the violation of a copyright or trademark in conjunction with the
FILMS or a trademark used in connection with the FILMS.
(g) A violation of the provisions of this sec. 6 on the part of the
LICENSEE shall establish the elements of the violation of substantial
duties of the agreement.
GUARANTEES
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7. (a) The LICENSOR hereby guarantees that the exercise of the rights
granted herein shall require no additional permission and that the
rights of third parties are not violated, excluding rights of public
performance and mechanical duplication of copyright-protected
material contained in the FILMS. However, the LICENSOR shall make no
guarantee or promise concerning local statutes or regulations which
apply in a certain country to the exercise of the rights granted
herein; accordingly, it shall be deemed agreed that compliance with
statutes and/or regulations shall be exclusively up to the LICENSEE
and that the LICENSEE shall indemnify the LICENSOR on any claims
relating to compliance with local statutes and/or regulations and/or
shall be obligated to compensate the LICENSOR for any damages
incurred.
(b) The LICENSOR hereby guarantees that it is or will be in possession of
all permits and licenses which will be necessary for the importation,
utilization and presentation of the FILMS in the hotels within the
contract territory during the presentation period and for making
payments in accordance with the agreement.
(c) Moreover, the LICENSEE hereby guarantees that it has concluded
binding contracts with the hotels concerning the presentation of
FILMS starting from the start of presentation according to appendix
A--in the amended version set forth in sec. 3 (b)--and that it is not
and shall not be in default during the term of the agreement with
regard to the performance of its obligations pursuant to the
contracts which have been concluded.
COMPENSATORY DAMAGES
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8. The LICENSEE shall be obligated to compensate or indemnify the LICENSOR for
all costs, liability, outlays and/or damages, including lost profits, which
the LICENSOR suffers due to a violation or asserted violation of the
terms of the agreement by the LICENSEE, the hotel or other natural person
or legal entities acting in the name of or by authority of the LICENSEE or
the hotel or its employees, decision-making representatives.
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INSURANCE
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9. (a) It shall be up to the LICENSEE to insure all video cassettes against
theft, loss and/or damage.
(b) In the event of theft, damage, loss or destruction of a video
cassette, the LICENSEE shall present the LICENSOR with a sworn
declaration concerning the facts in a form which is acceptable to the
LICENSOR.
PERFORMANCE, PRESENTATIONS, ADVERTISING
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10. (a) The FILMS shall be presented in their original sequence in
synchronized version with sound reproduction. Cuts or other changes,
including changing the titles, shall be impermissible.
(b) Without prejudice to the provision of the foregoing letter (a),
presentation of the FILMS in connection with advertising--excluding
the advertising of services of the hotel--shall not be permitted
without the prior written consent of the LICENSOR.
(c) The LICENSEE shall be obligated to pay, or cause the hotel to pay,
all license fees and other fees and taxes which are incurred in
connection with the distribution and presentation of the FILMS,
including sound reproduction, in the hotels.
(d) The LICENSEE may use only the original material provided by the
LICENSOR for advertising or announcement purposes.
(e) The LICENSEE shall be permitted to present FILMS for presentation
purposes, particularly at technical trade shows and in promoting its
deliveries/services, provided that it obtains the prior written
consent of the LICENSOR therefor. Consent shall be denied only for
good cause.
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RELATIONSHIPS OF THE PARTIES TO ONE ANOTHER
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11. The LICENSEE is neither an agent nor a representative of the LICENSOR, and
the agreement shall establish no corporate/partnership(1) relationship or
joint venture. Declarations by the LICENSEE shall not bind the LICENSOR,
nor shall the LICENSOR be liable for acts or omissions on the part of the
LICENSEE.
BEARING OF RISKS
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12. The LICENSEE shall be fully responsible for all costs and shall bear all
risks in connection with:
(a) the transport of video cassettes into and within the contract
territory;
(b) the reasonable and safe storage of the video cassettes within the
contract territories;
(c) compliance with import provisions and tax restrictions within or in
connection with the contract territory;
(d) acquisition of clearance certificates from inspection offices in the
contract territory and acquisition of all other certificates of non-
objection and permits which are necessary in or in connection with
the contract territory.
DEFAULT
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13. (a) The following events shall establish default in connection with
performance of this agreement:
(i) if the LICENSEE applies for the opening of an insolvency
proceeding or commits an act relevant with respect to
insolvency law, applies for a debt regulation or (if the
LICENSEE is a corporation/partnership(2)) a resolution is
adopted or an order is issued pursuant to which the
corporation/partnership is dissolved;
(ii) if the LICENSEE violates a substantial provision of the
agreement, particularly sections 5 or 6;
___________________________
(1) DEPENDING ON THE CONTEXT--WHICH IS NON-EXISTENT IN THIS CASE--THE GERMAN
BUSINESS ASSOCIATION GESELLSCHAFT MAY MEAN EITHER CORPORATION OR
PARTNERSHIP.
(2) See previous note.
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(iii) if the LICENSEE violates another provision contained herein
and the violation is not remedied within 10 days following
receipt of a warning by the LICENSOR.
(b) Upon occurrence of a case of default, the LICENSOR may--without
prejudice to other rights to which it is entitled--terminate the
agreement without notice at its election, with the consequence that
the outstanding license fee and other sums payable to the LICENSOR
pursuant hereto shall be due and payable immediately. In the event of
such an ending, the LICENSEE shall be obligated to return all video
cassettes to the LICENSOR immediately--which shall not establish a
duty on the part of the LICENSOR to first refund payments received
from the LICENSEE. The LICENSOR shall have the right to notify the
hotels of such an end to the contract. He shall not be liable for
damage or detriment suffered by the LICENSEE as a result of such end
to the contract.
(c) At the election of the LICENSOR, the violation of provisions of other
contracts between the LICENSEE and the LICENSOR shall be deemed to be
an event establishing defaults for purposes of the agreement if said
violation does not establish default under the other contracts.
(d) The foregoing rights shall apply in addition to all other rights and
legal remedies to which the LICENSOR is entitled by statute or
elsewhere.
ACTS OF GOD
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14. Notwithstanding other provisions of the agreement, if the performance of
obligations pursuant hereto is impossible, restricted, delayed or prevented
for reasons which one party is, in good faith, wholly or partially not
responsible--particularly as a result of impediment due to fire, storm,
war, invasions, acts of enemies of state, hostile acts (regardless of
whether a declaration of war is issued), civil war, revolt, strike or
industrial acts, due to the provisions of a statute, regulation, decree,
order or other governmental measure or due to transport delays--the
affected party shall be excused from the obligation of contractual
performance and released without sanction provided that the restriction,
delay or prevention of contractual performance is attributable thereto;
however, this shall apply subject to the proviso that neither all nor part
of the license fee shall be refunded and that the LICENSEE shall be
entitled to no other payment claims against the LICENSOR arising from the
fact that--for a reason for which the LICENSOR is not, in good faith,
responsible--it is impossible for the LICENSEE to present the FILMS in the
hotels or otherwise fully satisfy the LICENSEE's expectations concerning
presentation within the contract territory.
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RULES OF CONDUCT
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15. (a) The LICENSEE hereby acknowledges that it is not permissible to offer,
send or promise all or part of the counterperformance effected
pursuant to this agreement--indirectly or directly--to public
employees, a political party or office holder therein or a candidate
for a political office for the purpose of
(i) exercising influence on an act or decision of the person or
party in question; or
(ii) causing a person or party to exercise his or its influence on
or affect acts or decisions of a federal, state or municipal
government or one of its agencies.
For purposes of this section, the term "public employees" shall mean
all officials and employees in a federal, state or municipal
government or their ministries/departments or one of their agencies
or offices and any and all persons who act in an official capacity
for or in the name of the aforementioned.
(b) In performing the obligations to which it is subject pursuant hereto,
the LICENSEE shall comply with all applicable statutes and regulations
in the contract territory and shall be obligated to demand that its
employees, representatives and other persons with whom it enters into
contracts for the purpose of performance of its obligations pursuant
hereto act likewise; this shall apply subject to the proviso that
omissions on the part of the representatives and employees of the
LICENSEE shall not release the LICENSEE from its obligations pursuant
hereto.
COMPLIANCE WITH MPEAA PROVISIONS
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16. At the request of the LICENSOR, the LICENSEE shall be obligated to satisfy
all orders or resolutions which affect the contract territory in whole or
in part and are issued or adopted by the MPEAA or a successor organization
which represents the interest of distributors of American FILM works,
except to the extent that local law or pre-existing contractual obligations
of the LICENSEE would be violated thereby.
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GENERAL
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17. (a) Unless otherwise provided, all communications required pursuant
hereto shall be made in writing by personal delivery, registered
mail, fax or telex (the identification of the recipient must appear
at the beginning and end of the sender's copy). Communications shall
be deemed to have been received at the time of personal delivery,
seven days following surrender to the post office in the case of
shipment via registered mail or at the point in time at which a fax
or telex is transmitted.
(b) The waiver of the exercise of rights in the case of a contractual
breach shall not be deemed a waiver of rights in the case of other
contractual breaches.
(c) Without the prior written consent of the LICENSOR, the LICENSEE shall
not be entitled to assign this agreement--in whole or in part. The
LICENSOR may assign the agreement in whole or in part to corporations
affiliated with the LICENSOR or to third parties in connection with a
corresponding transfer of the LICENSOR's business operation.
(d) The LICENSEE shall not be permitted to grant sub-licenses with regard
to rights granted to it pursuant to this agreement or use a
representative, unless the LICENSOR has consented thereto in writing;
the LICENSOR shall be entitled to refuse consent for any reason
without indicating the grounds therefor.
(e) The agreement contains the entire agreement between the parties. Any
earlier oral or written arrangements concerning the performance
provided pursuant hereto are repeated in the agreement. To the extent
that this has not occurred, they shall be canceled hereby. The
LICENSOR has undertaken no assurances beyond those expressly
contained in the agreement.
(f) Modifications to or the rescission of the agreement must be in
writing and signed by both parties in order to be effective.
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(g) It shall be prohibited for the LICENSEE to offset rights and/or
claims held by the LICENSOR pursuant to the agreement on the basis of
other legal relationships, unless the LICENSEE's counterclaims are
undisputed or established by final legal determination.
(h) The headings contained in the agreement text serve strictly reference
purposes and shall not be taken into account in the application and
construction of the relevant provision.
(i) To the extent that reference to specific sections is made herein,
this shall refer to sections of these Standard Contract Terms, unless
otherwise indicated.
(j) In the event that provisions of the agreement are or should be found
to be invalid, this shall not affect the validity of the remaining
provisions; instead, the latter shall remain fully in affect.
UNITED INTERNATIONAL PICTURES GmBH
By: 3/2/96 /s/ Paul Steinschulte
Name: Paul Steinschulte
Title: General Manager
United International Pictures GmbH
Hahnstrasse 31/35
60528 Frankfurt am Main
LICENSEE
By: /s/ Heinz Wirt
Name: Heinz Wirt
Title: General Manager
Prodac
Prozessdatentechnik GmbH
- Electronicsysteme -
Max-Planck-Str. 38 50858 Cologne
APPENDIX A
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NO. NAME OF HOTEL ADDRESS COUNTRY NO. OF ROOMS
- --- ------------- -------- ------- ------------
Immediately upon conclusion of the contract (signing of the contract) the
LICENSEE shall give the LICENSOR a complete list of all its contract
hotels, including the hotels of its sublicensees.
VERSION: FEBRUARY 1996
APPENDIX A
HOTEL LIST
POS. HOTEL NAME CITY COUNTRY ROOM
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VERSION: FEBRUARY 1996
APPENDIX A
HOTEL LIST
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VERSION: FEBRUARY 1996
ANHANG A
HOTEL LIST
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VERSION: FEBRUARY 1996
APPENDIX A
HOTEL LIST
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VERSION: FEBRUARY 1996
APPENDIX A
HOTEL LIST
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APPENDIX B
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The maximum of 30 feature films, plus 20 feature films for "Videoquest" in
accordance with the more specific terms of the agreement, each based on the
LICENSOR's availability.
APPENDIX C
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NO. OF HOTEL ROOMS ANNUAL LICENSE FEE in DM
- ------------------ ------------------------
Pursuant to AGREEMENT (S) 2a
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Plus value-added tax
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treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
APPENDIX D
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The license rights to the film recorded on this video cassette (including
language and music) shall apply only to utilization outside of film theaters.
Presentation in hotels shall be permitted only for guests in the hotel rooms via
the hotel in-house distribution facility. Presentation in private rooms or
rooms to which the general public has access, such as hotel halls, salons, bars,
restaurants, discotheques or the like, shall not be permissible under any
circumstances. All other rights shall remain reserved. Title to the video
cassette shall be held by the LICENSOR in accordance with the rights granted to
him.
The unauthorized duplication, editing, performance, leasing, exchange, loan,
public dissemination and/or broadcast of this video cassette--in whole or in
part--is strictly prohibited. Violations shall be subject to civil and/or
criminal prosecution.
APPENDIX E
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SUBLICENSE
- ----------
The LICENSOR hereby permits the LICENSEE to grant the following firms and
hotels (see appendix A) sublicenses to the video feature films provided to
LICENSEE by the LICENSOR under this agreement, with its Standard Contract
Terms:
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portions have been filed separately with the Commission.
APPENDIX E Version: February '96
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NO. HOTEL NAME CITY COUNTRY ROOMS
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treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.